When Is “Comp Time” A Legal Form Of Overtime Compensation?

In the private sector, there’s only one legal way for employers to pay overtime — time-and-a-half for every hour over forty hours in a given work week. It’s illegal for private employers to compensate overtime hours in any other manner. That includes “compensatory time” or “comp time,” which some private employers unlawfully try to use as overtime compensation in lieu of properly paying time-and-a-half or “premium compensation.”

Conversely, public employers can pay their employees’ overtime with compensatory time under very strict rules. Like regular overtime pay, public employees’ compensatory time is also earned at a rate of one-and-a-half compensatory days for every hour worked over forty hours in a given week. In order for public employers to pay compensatory time in lieu of regular overtime pay, there must be an agreement or understanding between the employer and its employees entered into before the work is performed. There are also rules concerning the total amount of compensatory time that an employee may accrue and the preservation, use, and “cashing out” of accrued but unused compensatory time.

Public employees must be allowed to use compensatory time within a reasonable period after making a request to use it if the use does not unduly disrupt the operations of the government agency. In order for a public employer to deny use of compensatory time, the employer must show more than that granting the time off would be an inconvenience. Instead, the employer has to prove that granting the request would impose an unreasonable burden on the agency’s ability to provide services of acceptable quality and quantity to the public during the time of the employee’s absence. At the same time, public employers can legally compel the use of compensatory time and force their employees to use compensatory time.

One mistake that public employers often make is forgetting to pay their employees while the employees are using compensatory time. While on compensatory time, public employees still must be paid their regular rate of pay.